The Legal Flaw With Ditching DACA Administrative Procedure Act Magna Carta

Part 2, from,Who Are The Founders For DACA? ,President Donald Trump’s decision to end the Obama-era Deferred Action for Childhood Arrivals program has been criticized, by Democrats and Republicans alike, as “cruel,” “inhumane” and “unconscionable.” It is also quite likely illegal. The decision is being implemented in a way that appears to violate the Administrative Procedure Act, and the courts might well block the Trump administration’s action on those grounds.

 The Administrative Procedure Act, sometimes called the “Magna Carta of administrative law,” is a 1946 statute that governs hundreds of federal agencies, including the Department of Homeland Security. It requires that agencies go through a process known as “notice and comment” before issuing, amending or repealing “substantive rules.” As part of that process, the agency must publish proposed actions in the Federal Register and then give the public at least 30 days to submit feedback. When it finalizes its proposal, the agency must respond to issues raised by the public comments and must explain why it settled upon the course of action that it chose. The explanation must show why the agency’s action is reasonable and not “arbitrary” or “capricious.”

 In hundreds of cases, the federal courts have had to decide what counts as a “substantive rule” to which the notice-and-comment requirement applies. In a nutshell, a substantive rule is an agency action that alters the rights or interests of parties, changes the background regulatory regime and has a present and binding effect. Sometimes, agencies will take actions that do all of these things but are labeled as “policy statements” rather than “substantive rules.” In those cases, federal courts will block the agency from carrying through on its policy until it goes through the notice-and-comment process.

 That’s what’s likely to happen here. On Tuesday, Acting DHS Secretary Elaine Duke sent a memo to other officials in her department regarding the Deferred Action for Childhood Arrivals, or DACA, program. Since its inception in 2012, DACA has allowed more than 800,000 undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other benefits. Immigrants eligible for DACA, known as Dreamers, must file an application with DHS and must seek renewal of their status every two years.

 That will now change. Duke’s memo says that “[e]ffective immediately,” DHS will “reject all DACA initial requests” filed after Tuesday. It goes on to say that the department will “reject all DACA renewal requests” received after October 5 of this year. The memo has all the signs of a substantive rule. It alters the rights of Dreamers, who now cannot obtain work permits and other privileges associated with deferred action status (such as Social Security benefits). In so doing, it changes the background regulatory regime. And as the memo makes clear, it has a present and binding effect on DHS officials and on hundreds of thousands of Dreamers.

 Since it announces a substantive rule, the memo is subject to the notice-and-comment requirement. But DHS has given no indication that it intends to go through the notice-and-comment process here. Instead, Acting Secretary Duke has moved ahead without giving the public 30 days to submit feedback. That’s a violation of the Administrative Procedure Act, and it would give a federal court a basis for blocking the department from carrying through on its new substantive rule.

 There is, to be sure, a wrinkle in this argument. The wrinkle is that then- DHS Secretary Janet Napolitano did not go through notice and comment when she announced the DACA policy by memorandum back in 2012. The Trump administration will likely say that if DACA didn’t need to go through notice and comment initially, then DHS shouldn’t have to go through notice and comment now when it rescinds DACA. And if DACA ­did­­ need to go through notice and comment initially, then DACA itself is procedurally invalid and should be set aside on those grounds.

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Lets see if they can slap this around again, nice real nice.

Yep,

LOL Tif

I have read all three of the DACA Information posted here, I am puzzled why the reports did not include all the information?

 Thank you Tif for making a honest report.

Your welcome.

LOL Tif

The Administrative Procedures Act doesn't provide the President or the Administration with the right to VIOLATE THE STATUTORY LAW... it allows the Administration to promulgate regulations and  procedures that aid in implementing the laws as written... nothing more.

Mr. Nelson,

 The Administrative Procedures Act, is not what is being challenged, President Trump, has turned this issue over to Congress for a Convention of States, something that Obama, refused to do.

 It is now in the hands of Congress, Trump gave then the middle finger, And as of today, DACA is still in part blocked.

 The Constitutional Authority has all ways been in a Convention, and one man even the President Of The United States is not above the Constitution. This goes for the EU, and them within the United Nations.

Good morning Ronald,

 Its Freezing, totally cold this morning. As for The Administrative Procedures Act, I kind of shared that the left nuts was using the Magna Carta, as a Ruling Class "ding bat's" way in laws, but that will be shared in a few.

LOL Tif

Now, this is how I found out about this blog and the lefty nutty Magna Carta, I was nosey...:)

How The DACA Dump Might Be Ditched By The Courts- YouTube

https://www.youtube.com/watch?v=lno6WDq_fjw

There is area under the video, so I followed the links to this blog: https://www.politico.com/magazine/story/2017/09/05/the-legal-flaw-w...

The I cased searched this Google "

Article 39 of Magna Carta in particular stands at the head of our constitutional understanding of the due process of law. It barred prerogative or administrative adjudication, by which rulers evaded the regular processes of the courts.Mar 23, 2016": https://www.google.com/search?q=Magna+Carta+of+Administrative+Law&a...

I have check into the sites you presented, you are correct in this presentation.

Thank you Mrs. Morgan, I will need to read more about this.

Part 2 In Your Face

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LIGHTER SIDE

 

Political Cartoons by AF Branco

Political Cartoons by Tom StiglichPolitical Cartoons by AF Branco

ALERT ALERT

Fact Check:   'Joe Biden Claims ‘We Didn’t Lock People Up In Cages’

CLAIM: Former Vice President Joe Biden claimed, on immigration: “We didn’t lock people up in cages.”

VERDICT: FALSE. The “cages” were built by the Obama-Biden administration.

Univision moderator Jorge Ramos asked Biden at the third Democrat debate at Texas Southern University in Houston, Texas, why Latinos should trust him after the Obama administration continued deporting “undocumented immigrants.”

Biden claimed that the Obama administration’s policies were more humane than those of President Donald Trump: “We didn’t lock people up in cages,” he said.

In fact, the “cages” were built by the Obama administration to deal with a surge of unaccompanied minors who crossed the border illegally in 2014.

Originally, the Obama administration was “warehousing” children — literally — in overwhelmed Border Patrol facilities. Breitbart News broke the story of the surge, which was partly triggered by Obama’s policy of allowing illegal alien children who entered the country as minors to stay in the country (Deferred Action for Childhood Arrivals, or DACA).

Above image credit: AP Photo/Ross D. Franklin, Pool, File

The above photo was published by the Associated Press in June 2014, and the photo below is of Obama’s Secretary of Homeland Security, Jeh Johnson, touring a Border Patrol facility with “cages.”


Above: Border Patrol officers escort Homeland Security Secretary Jeh Johnson and Gov. Jan Brewer through the department’s Nogales processing facility for immigrant children. (Photo courtesy Barry Bahler/Department of Homeland Security)

The “cages” are chain-link enclosures in Border Patrol processing facilities that are meant to protect children from adults in custody. They are not permanent accommodations.

In mid-2018, as the Trump administration began enforcing a “zero tolerance” policy that stopped the “catch-and-release” policy of letting illegal aliens go after they were arrested. Detaining adults and children meant that children had to be processed separately; the enclosures prevented adults from harming children.

As Breitbart News reported at the time, children were not housed in “cages.” They were processed and then taken to shelters, where they were given medical care, toiletries, education, recreation, and counseling, and where staff attempted to find relatives or sponsors to whom they could be released.

Democrats began tweeting images of “kids in cages” to condemn the Trump administration. Journalists, too, shared those images.

One problem: they were taken during the Obama administration.

Public outrage at the images led President Trump to end the policy, and require families to be detained together.

Democrats keep repeating the mistake, however: in July, they had to delete a tweet that used an image from the Obama era and cited the “inhumane treatment” of children by the Trump administration.

Republicans argue that not detaining illegal aliens is actually the cruel policy, because it encourages migrants to undertake a dangerous journey, often guided by cartels and smugglers.

As Breitbart News’ Alana Mastrangelo noted recently:

But what’s worse than “cages,” however, are reports of migrant children also being handed over to human traffickers during the Obama administration — while Biden was vice president — according to the New York Times. Between October 2013 and July 2015 alone, nearly 80,000 unaccompanied children from Central American countries were detained by U.S. authorities.

It remains unclear how many of the tens of thousands of children were handed over to human traffickers — including sex traffickers — during that span of nearly two years, as those cases are reportedly not tracked.

“Others were ransomed by the very smugglers to whom their families paid thousands of dollars to sneak them into the United States,” reported the New York Times in 2015, during Obama’s presidency and Biden’s vice presidency. “Some lost limbs during the journey or found themselves sold into sexual slavery.”

Biden told voters in South Carolina last month that he would close all border detention facilities, guaranteeing that the migrant flow would continue.

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